Court upholds Navajo preference

By Bill Donovan
Special to the Times

WINDOW ROCK, November 1, 2012

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A 10-year legal battle between the Navajo Nation and a federal agency charged with ending discrimination in hiring has ended with a victory for the Navajos.

At stake was the Navajo position that it could require companies doing business on the reservation to give preference in hiring to members of the Navajo Nation. A ruling by a federal district court judge in Arizona upholds that position.

The lawsuit stemmed from a suit filed by the federal Equal Employment Equal Opportunity Commission against Peabody Western Coal and the Nation centered around allegations that Peabody was refusing to hire Indians from other tribes because of its lease with the Navajo Nation, which requires Navajo preference.

Specially, according to the EEOC, Peabody rejected the applications from two members of the Hopi tribe as well as one from the Otoe Tribe. Other non-Navajo Indians also reported having no luck getting jobs at the Peabody mines at Kayenta and Black Mesa.

The EEOC claimed that this was illegal because of federal laws that prohibit discrimination in hiring because of race or gender. Attorneys for the EEOC argued that while American Indians as a group could be offered preference, it could not be done for just Navajos.

The Navajo position, however, was that this was not a case of discrimination based on race but was instead a political preference that applied only to members of the Navajo Nation.

Tribal attorneys also pointed out that Navajo preference was referenced in the lease that Peabody signed with the tribe for mining rights to the land and that this lease was approved by the U.S. Secretary of the Interior.

The EEOC was trying to get the federal court to void those sections of the lease that required Peabody to adhere to Navajo preference in hiring. If the agency succeeded, the company also would not have had to comply with provisions of the Navajo Preference in Employment Act, which would have seriously weakened the act not only with Peabody but also with other employers on the Navajo Reservation.

But U.S. District Court Judge John Sedwick agreed with the position of the Navajo Nation, saying he also thought the Navajo preference laws was a political preference and was therefore allowable.

Erny Zah, speaking for the Office of Navajo President Ben Shelly, said the Navajos were happy with Sedwick's decision since it falls in line with efforts by Shelly to "protect existing jobs held by Navajos."

He said this was also a victory for tribal soverignty.

The decision was also praised by officials at the Interior Department and Peabody who said the decision, "unequivocally and steadfastly supports Navajo tribal preference for on-reservation employers."

Officials for the EEOC were, however, not happy with the decision.

"We are disappointed," said EEOC regional attorney Mary Jo O'Neill. "We disagreed with the decision and we are considering our options, including appeals."

That doesn't come as a surprise since one reason why this case has been in the federal court system for so long is that district court decisions in the past have been appealed twice to the Ninth U.S. Circuit Court of Appeals, which was sent the case back to the district court for a decision on the merits of the case.

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